November 13, 2020

Total Chiropractic, P.C. v Hereford Ins. Co. (2020 NY Slip Op 51362(U))

https://www.beynensonlaw.com/case-law/total-chiropractic-p-c-v-hereford-ins-co-2020-ny-slip-op-51362u/

Court: Appellate Term, Second Department
Decided: November 13, 2020
Citation: 2020 NY Slip Op 51362(U)
Posture: Summary judgment
Outcome: Split result
Issues: Provider's prima facie case Timeliness and preclusion IME no-show
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

Total Chiropractic, P.C. v Hereford Ins. Co., 2020 NY Slip Op 51362(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider failed to establish its prima facie case, and the insurer failed to schedule the initial IME within the required 30 days. The provider did not show that its claims were denied untimely or that timely denials were conclusory, vague, or without merit as a matter of law. The insurer also lacked entitlement to summary judgment on IME nonappearance because the initial examination was not scheduled within 30 calendar days after receipt of the claims, as required by 11 NYCRR 65-3.5 (d). The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its motion, and denied that motion, leaving the denial of the insurer's cross motion intact.

Reported in New York Official Reports at Total Chiropractic, P.C. v Hereford Ins. Co. (2020 NY Slip Op 51362(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Total Chiropractic, P.C., as Assignee of Dumesle, Joseph, Respondent,
against
Hereford Insurance Co., Appellant.

Goldberg, Miller & Rubin, P.C. (Matthew Lavoie and Timothy Bishop of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered September 12, 2018, deemed from a judgment of that court entered October 11, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 12, 2018 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,900.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered September 12, 2018 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). A judgment was subsequently entered on October 11, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant correctly argues that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as plaintiff failed to establish that its claims had not been [*2]timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

However, contrary to defendant’s further argument, defendant did not demonstrate that it is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for IMEs, as the initial IME had not been scheduled to be held within 30 calendar days after defendant’s receipt of plaintiff’s claims (see 11 NYCRR 65-3.5 [d]).

Defendant’s remaining contention lack merit.

Accordingly, the judgment is reversed, so much of the order entered September 12, 2018 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed to establish that its claims had not been timely denied or that timely denials were conclusory, vague or without merit, so its summary judgment motion should have been denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

No-show defense: insurer's proof

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Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements

Held the insurer not entitled to summary judgment on the IME no-show defense because the initial IME was not scheduled within 30 calendar days after receipt of the claims.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decision

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Total Chiropractic, P.C. v Integon Natl. Ins. Co. (2021 NY Slip Op 50443(U))The insurer's affidavit failed to establish proper mailing of IME notices, and the provider failed to show entitlement to summary judgment.
American Chiropractic Care, P.C. v Hereford Ins. Co. (2019 NY Slip Op 51359(U))The insurer failed to establish timely IME scheduling, and the provider failed to establish its prima facie entitlement to payment.
Success Rehab, PT, P.C. v Hereford Ins. Co. (2019 NY Slip Op 52031(U))The insurer's IME no-show defense failed on nine claims because the first IME was scheduled beyond 30 days after receipt.
Motionpro Physical Therapy v Hereford Ins. Co. (2018 NY Slip Op 50251(U))The insurer established its IME nonappearance defense to the second claim, but the IME was scheduled too late to support the first.
Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co. (2022 NY Slip Op 50606(U))An insurer need not comply with 11 NYCRR 65-3.6 (b) for IMEs scheduled before it receives the claim at issue.